Churches Battle For Return To Past

Catalysts for change sometimes have humble and unlikely beginnings. And change sometimes means changing things back to the way they were.

That`s precisely how and why a new coalition was forged to fight for religious freedom in the United States.

The national Coalition for the Free Exercise of Religion did not band together out of vague or abstract concern about the future. Members feel religious freedom is in jeopardy now, as a direct result of a specific U.S. Supreme Court decision, rendered on April 17, 1990.

Its initial effect was at the fringe of America`s religious fabric, inhibiting religious practices of American Indians that were distinctly outside mainstream culture.

But when the justices ruled in a case called ``Oregon Department of Human Services vs. Smith``-denying two Native Americans` unemployment compensation claims after they had been fired as drug counselors due to their use of peyote in religious rituals-the Supreme Court alarmed and activated a much-broader religious coalition.

The new allies range from the conservative National Association of Evangelicals to the liberal National Council of Churches, and include both conservative and liberal Baptist and Jewish organizations.

What frightened them most about the ``Smith`` decision was a majority opinion, expressed by Justice Antonin Scalia, that the Constitution`s 1st Amendment guarantee of free exercise of religion does not require governments to prove a ``compelling interest`` in order to enforce a statute that restricts religious practice.

Contradicting a quarter-century-old standard, Scalia said that requiring proof of compelling interest was a ``luxury`` this pluralistic society cannot afford.

``It used to be you knew where the line was drawn, but the Supreme Court has moved the line,`` said a congressional staff member.

The Coalition for the Free Exercise of Religion is working with U.S. Rep. Stephen Solarz (D-N.Y.) to re-establish that line by enacting a Religious Freedom Restoration Act.

Now before a House subcommittee for possible hearings when Congress reconvenes next month, Solarz`s bill has 80 co-sponsors.

Explaining the broad involvement of American churches in what began as a minority-religion issue, associate general counsel J. Brent Walker of the Baptist Joint Committee on Public Affairs, said:

``The Supreme Court has set a new general-law precedent that can be applied to any religious practice, from drinking wine to baptizing children.

``For example, a church could defend itself easily against a suit to outlaw its baptisms. But it becomes a lot harder if the court says swimming is OK but no one can hold another person`s head under water.

``Then, full-immersion baptism would be a lot more threatened.``

For skeptics who don`t believe that after-effects from the Supreme Court ruling could spread insidiously like a cancer among American religions, there are troubling signs: Since it was issued 16 months ago, the Smith ruling has been cited in cases against Laotian Hmongs who object to autopsies as violations of their religious beliefs; Amish buggy drivers who cite religious beliefs in refusing to display fluorescent orange traffic warning signs;

Passing the Religious Freedom Restoration Act is ``of enormous importance,`` says Douglas Laycock, a University of Texas law professor specializing in religious freedom issues. ``Obviously, it is important to protect minority religions. But it is also important to mainstream churches, whose folks in the pews don`t feel threatened yet.``

Under the standard before April 1990, ``the Constitution said you could regulate a church if you had a very good reason to do so and no other way to prevent a harm you perceived. That plainly put a very strong burden of proof on the state.

``But after Smith, the state not only needs no proof, it needs no reason.``

There is ready consensus among religious groups that the Smith decision is devastating to religious freedom. But just as they have disagreed on a multitude of issues in the past, they don`t all agree that Solarz`s bill is the remedy here.

The United States Catholic Conference, which comprises America`s Roman Catholic bishops, has neither endorsed nor opposed the bill.

Its concern is that the bill`s language could be interpreted as enabling abortion claims under free exercise of religion.

Such claims have been made in the past, said Mark Chopko, the conference`s general counsel.

The conference ``looks forward to relief from the Smith decision,``

Chopko said, ``but not one that could provide statutory access to abortion. This is not a statute that will bring peace in the valley.``

Supporters of the bill say its language couldn`t be more abortion-neutral, and it doesn`t guarantee any free exercise claim.

``The bill does not attempt to dictate the result in any particular case,`` Solarz said. ``Rather, it returns to the courts the role of engaging in this delicate balancing test.``

But even before the Congress begins debate on this issue, it`s already clear that change doesn`t come easily. . . . even changing back to the way things were.